[Federal Register Volume 66, Number 138 (Wednesday, July 18, 2001)]
[Proposed Rules]
[Pages 37429-37432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17957]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 211 and 212

[INS No. 2047-00]
RIN 1115-AF65


Entry Requirements for Citizens of the Republic of the Marshall 
Islands, the Federated States of Micronesia, and Palau

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule is designed to remedy two problems that have arisen 
in connection with section 141(a) of the Compact of Free Association 
between the United States of America and the Republic of the Marshall 
Islands and with the Federated States of Micronesia (48 U.S.C. 1910 
note), and the Compact of Free Association between the United States of 
America and Palau (48 U.S.C. 1931, note) (Compacts, Compact countries). 
That section confers on citizens of the Compact countries certain 
privileges to enter the United States as nonimmigrants, subject, 
however, to several exceptions set forth in section 141(a)(3)(c) and 
section 143 of the Compacts.
    This rule will clarify the entry requirements for citizens of the 
Compact countries who have been adopted by citizens or lawful permanent 
residents of the United States. The purpose of this aspect of the rule 
is to prevent the abuse of the entry privileges of section 141(a) of 
the Compacts as a means of circumventing statutory provisions designed 
to protect adopted children from abuse or exploitation.
    In addition, this rule will correct an omission in the codification 
of section 141(a) of the Compacts in 8 CFR 212.1(d). That Codification 
inadvertently failed to include the exceptions to entry privileges of 
citizens of the Compact countries. By incorporating those exceptions in 
8 CFR 212.1(d)(2), the rule will bring the Immigration and 
Naturalization Service (Service) regulations into compliance with the 
Compacts.

DATES: Written comments must be submitted on or before August 17, 2001.

ADDRESSES: Please submit written comments to the Director, Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure 
proper handling, please reference INS No. 2047-00 on your 
correspondence. Comments may also be submitted electronically to the 
Service at [email protected]. When submitting comments electronically 
please include INS No. 2047-00 in the subject box. Comments are 
available for public inspection at the above address by calling (202) 
514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Michael Biggs, Assistant Director, 
Residence and Status Services, Office of Adjudications, Immigration and 
Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 
20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

What Are the Entry Privileges of Citizens of the Compact Countries 
Under the Compacts, and How Does This Rule Affect Those Privileges?

    The Compacts both provide in section 141(a), with certain 
exceptions discussed, infra, for the following privileges for most 
citizens of the Compact countries who seek to enter into the United 
States as nonimmigrants. Such citizens of the Compact countries may 
enter into the United States, lawfully engage in occupations, accept 
employment, and establish residence as nonimmigrants in the United 
States, its territories and possessions, without regard to section 
212(a)(5)(A) (labor certification), (7)(A) (immigrant visa) and (B) 
(nonimmigrant visa) of the Immigration and Nationality Act (Act). 
(Previously sections 212(a)(14), (20) and (26) of the Act). This rule 
does not affect the existing Compact entry privileges.
    The Service notes that sections 212(a)(7)(A) and (B) of the Act 
which are waived by section 141(a) of the Compacts contain not only 
visa requirements, but also a passport requirement. The waiver 
contained in section 141(a) of the Compacts therefore appears to 
include a waiver of the need to present a passport upon entry into the 
United States. However, practical

[[Page 37430]]

experience has shown that a passport or similar travel document is the 
only reliable means by which immigration officials can determine 
whether an alien is a citizen of a Compact country entitled to the 
privileges of section 141(a). Therefore, the Service requires that 
citizens of the Compact countries who seek to enter the United States 
as nonimmigrants under section 141(a) present a passport or similar 
travel document. This is necessary not in order to comply with the 
admission requirements of section 212 of the Act, but rather in order 
to establish entitlement to the privileges of section 141(a) of the 
Compacts.

What Is the Purpose of This Rule?

    While this rule does not modify the substantive Compact rights of 
citizens of the Compact countries to enter the United States, the rule 
is designed to clarify the pertinent administrative regulations in two 
aspects. First, the rule makes it clear that citizens of the Compact 
countries who have been adopted by citizens or lawful permanent 
residents of the United States are coming to the United States 
presumptively to reside as immigrants. Therefore, they may not enter 
the United States as nonimmigrants under section 141(a), but must 
comply with the standard procedures for immigration, including 
immigrant visas. Procedures governing the immigration visas for adopted 
children are to be found in a 8 CFR 204.2 and 8 CFR 204.3.
    Second, the rule codifies in 8 CFR 212.1(d)(2) the Compact 
limitations on the privileges of citizens of Compact countries to enter 
the United States as nonimmigrants. These limitations, found in 
sections 141(a)(3), (c) and 143 of the Compacts, were inadvertently 
omitted from 8 CFR 212.1(d) when that regulation was first issued.
    These exceptions to the privileges of section 141(a) are briefly:
    (i) Naturalized citizens of the Compact countries, unless they have 
been ``actual residents'' of the Compact country that had naturalized 
them and hold a ``certificate of actual residence,'' as those terms are 
defined in section 461 of the Compacts (section 141(a)(3));
    (ii) Citizens of a Compact country who have taken an affirmative 
step to retain or acquire the nationality or citizenship of another 
country (section 143(a) of the Compacts);
    (iii) Citizens of a Compact country who are also citizens of 
another country, unless they renounce that other citizenship under oath 
(section 143(b) of the Compacts); and
    (iv) Citizens of a Compact country who seek to obtain a residence 
status leading to naturalization (section 141(c) of the Compacts).

Why Is the Clarification Regarding Adopted Children Necessary?

    The clarification of the entry status of citizens of the Compact 
countries adopted by citizens or lawful permanent residents of the 
United States is necessary because of a practice that has developed in 
Compact countries. Citizens and lawful permanent residents of the 
United States have adopted children who are citizens of the Republic of 
the Marshall Islands and brought them to the United States as 
nonimmigrants under section 141(a) of the Compacts.
    This practice constitutes an improper use of the privileges under 
section 141(a) of the Compacts. Children who enter the United State 
after having been adopted abroad by citizens or lawful permanent 
residents of the United Stated do so presumptively in order to 
establish permanent residence, i.e. to immigrate, rather than to become 
temporary nonimmigrant visitors. Moreover, the practice of entering 
adopted children as nonimmigrants also puts those children at risk by 
bypassing measures designed to protect them, and jeopardizes their 
ability to become United States citizens.
    Most adopted children immigrate pursuant to section 101(b)(1)(F) of 
the Act. United States citizens who adopt abroad a child as defined in 
section 101(b)(1)(F) of the Act must file a petition with the Service 
to classify the child as an immediate relative before obtaining an 
immigrant visa for the child. Section 101(b)(1)(F) of the Act requires 
that the Attorney General be satisfied that proper care will be 
furnished to the child if admitted to the United States. The Service 
therefore evaluates this petition to determine the ability of the 
prospective adoptive parents to provide a proper home environment for 
the child and their suitability as parents. These determinations are 
based primarily on a home study, which is a requirement of section 
204(d) of the Act, and criminal background checks, and are essential to 
protect the child.
    When adoptive parents bring a child into the United States 
purportedly as nonimmigrants under the Compacts they evade, as matter 
of law, the statutory mandates of section 101(b)(1)(F) and section 
204(d) of the Act that alien children adopted abroad by United States 
citizens shall not be admitted to the United States unless the 
suitability of the adoptive parents has been determined. By the same 
token such adoptive parents deprive the child, as a matter of fact, of 
an important protection from abuse or exploitation.
    Moreover, the admission of an adoptive child as a non-immigrant 
under section 141(a) of the Compacts jeopardizes the child's ability to 
become a citizen of the United States. Section 320 of the Act, as 
amended by section 101 of the Child Citizenship Act of October 30, 
2000, Public Law 106-395, 114 Stat. 1631, effective February 27, 2001, 
which provides for the automatic naturalization of certain children 
born outside the United States, including adopted children, requires 
that the child reside in the United States, ``pursuant to lawful 
admission for permanent residence.'' In other words, a child must enter 
the United States as an immigrant in order to be eligible for automatic 
naturalization under section 320 of the Act.
    The Compact countries have indicated that, without the 
clarification envisaged in the rule, they may no longer permit the 
adoption of their citizens and lawful permanent residents of the United 
States. For all these reasons, it is important to make certain that 
citizens of the Compact Countries who have been adopted by United 
States citizens are admitted to the United States as immigrants.

What Changes Is the Service Making to the Regulations?

    1. Section 211.1(a) (immigrant visas) is revised to clarify that it 
covers children who are citizens of a Compact country who have been 
adopted by citizens or lawful permanent residents of the United States. 
Those children therefore must present an immigrant visa in order to 
enter the United States. This change is necessary to distinguish these 
children from citizens of the Compact countries who, under the 
Compacts, may enter into the United States as nonimmigrants.
    2. Section 212.1(d) (documentary requirements for nonimmigrants) is 
revised to incorporative five exceptions to the current text of 
paragraph (d). Paragraph (d) is re-designated as paragraph (d)(1) and 
continues to permit citizens of the Compact countries to enter into the 
United States, lawfully engage in occupations, accept employment, and 
establish residence in the United States and its territories and 
possessions as nonimmigrants, exempt from the visa and labor 
certification requirements with the addition of the clause, ``except as 
otherwise provided in paragraph (d)(2).''
    3. A new paragraph (d)(2) spells out five exceptions to the basic 
principle embodied in paragraph (d)(1). Those citizens of the Compact 
countries who

[[Page 37431]]

come within those exceptions must comply with the standard procedures 
of the Act in order to enter into the United States.
    These changes are necessary to implement the Compact provisions in 
the Code of Federal Regulations and to distinguish between those 
citizens of the Compact countries who are coming to the United States 
as nonimmigrants under the Compacts and those who must enter the United 
States as immigrants or under other provisions of the Act.

Thirty-Day Comment Period

    The rule provides for a 30-day comment period rather than the 60-
day comment period that is usually provided under Executive Order 
12866. This will allow the Service to proceed with final rulemaking in 
a quicker manner so that the agency can expeditiously clarify the 
documentary requirements for adopted children from Compact countries. 
Without prompt clarification of the documentary requirements for an 
adoption of a child from the Compact countries, the Compact countries 
may no longer permit to the adoption of children by citizens and lawful 
permanent residents of the United States.
    In addition, the expedition of the Service's rulemaking will 
control the orderly and proper admission of nonimmigrants from Compact 
countries into the United States. Currently, Service regulations are 
not in compliance with the Compacts, resulting in the potential for 
improper admissions into the United States. This occurs because the 
limitations of the Compact, found in sections 141(a)(3), (c) and 143 of 
the Compacts, were inadvertently omitted from 8 CFR 212.1(d) when that 
regulation was first issued.

Regulatory Flexibility Act

    The Acting Commissioner of the Immigration and Naturalization 
Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), has reviewed this regulation and, by approving it, certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities. This rule primarily affects 
individuals, who are entering the United States as nonimmigrants under 
the Compacts, and those who are entering as intending immigrants. This 
rule does not affect small entities as that term is defined in 5 U.S.C. 
601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one-year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Summary Impact Statement.

Executive Order 12988 Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting and recordkeeping 
requirements inherent in a final rule. This rule does not impose any 
new reporting or recordkeeping requirements under the Paperwork 
Reduction Act.

List of Subjects

8 CFR Part 211

    Immigration, Passports and visas, Reporting and recordkeeping 
requirements.

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS

    1. The authority citation for part 211 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1227; 8 
CFR part 2.

    2. In Sec. 211.1, paragraph (a) introductory text is revised to 
read as follows:


Sec. 211.1  Visas.

    (a) General. Except as provided in paragraph (b) of this section, 
each arriving alien applying for admission (or boarding the vessel or 
aircraft on which he or she arrives) into the United States for lawful 
permanent residence, or as a lawful permanent resident returning to an 
unrelinquished lawful permanent residence in the United States and all 
children who are citizens of the Republic of the Marshall Islands, the 
Federated States of Micronesia, or Palau who have been adopted by 
citizens of the United States or by lawful permanent residents of the 
United States, must present one of the following:
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    3. The authority citation for part 212 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1187, 1225, 1226, 
1227, 1228, 1252, sections 141, 143, and 461, of the Compacts with 
the Republic of the Marshall Islands, the Federated States of 
Micronesia, and Palau, 48 U.S.C. 1901, note, and 1931, note, 
respectively; 8 CFR part 2.

    4. In Sec. 212.1, paragraph (d) is revised to read as follows:

[[Page 37432]]

Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (d) Citizens of the Republic of the Marshall Islands, the Federated 
States of Micronesia, and Palau (Compact countries)--(1) General. 
Except as provided in paragraph (d)(2) of this section, citizens of the 
Compact countries may enter into the United States, lawfully engage in 
occupations, accept employment, and establish residence as 
nonimmigrants in the United States and its territories and possessions 
without regard to section 212(a)(5)(A) (labor certification), (7)(A) 
(immigrant visa), and (B) (nonimmigrant visa) of the Act, provided that 
they possess a passport or similar travel document issued by the 
Compact country of which they are citizens in order to establish their 
entitlement to those privileges. This is pursuant to section 141(a), of 
the Compact between the United States of America and the Marshall 
Islands and the Federated States of Micronesia, 48 U.S.C. 1901, note, 
and of section 141(a), of the Compact between the United States of 
America and Palau, 48 U.S.C. 1931, note (Compacts).
    (2) Exceptions. The following citizens of the Compact countries are 
not eligible for the privileges described in paragraph (d)(1) of this 
section and must follow standard procedures for obtaining immigrant or 
nonimmigrant visas, as appropriate, for entry into the United States, 
its territories and possessions:
    (i) Children who are citizens of a Compact country who have been 
adopted by a United States citizen or a lawful permanent resident of 
the Untied States and are coming to the United States. This exception 
is based on sections 101(b)(1)(F) and 204(d) of the Act;
    (ii) Naturalized citizens of the Compact countries, unless they 
have been actual residents in their country of naturalization for not 
less than 5 years after attaining naturalization and hold a certificate 
of actual residence from that country. This is pursuant to section 
141(a)(3) of the Compacts. The terms ``actual resident'' and 
``certificate of actual residence'' are defined in section 461 of the 
Compacts;
    (iii) (A) Any citizen of the Republic of the Marshall Islands or of 
the Federated States of Micronesia who takes or has taken an 
affirmative step to preserve or acquire a nationality or a citizenship 
other than that of the Republic of the Marshall Islands or of the 
Federated States of Micronesia. This is pursuant to section 143(a) of 
the Compact with the Republic of the Marshall Islands and the Federated 
States of Micronesia;
    (B) Any citizen of Palau who takes or has taken an affirmative step 
to preserve or acquire a nationality or a citizenship of another 
country. This is pursuant to section 143(a) of the Compact with Palau;
    (iv) (A) Any citizen of the Republic of the Marshall Islands or of 
the Federated States of Micronesia having the privileges set forth in 
paragraph (d)(1) of this section who also possesses a nationality or a 
citizenship of a country other than that of the Republic of the 
Marshall Islands or the Federated States of Micronesia, and who has not 
renounced that additional nationality or citizenship under oath within 
2 years after the effective date of the Compact (October 21, 1986, for 
the Republic of the Marshall Islands and November 3, 1986, for the 
Federated States of Micronesia), or within 6 months after becoming 21 
years old, whichever is later. This is pursuant to section 143(b) of 
the Compact with the Republic of the Marshall Islands and the Federated 
States of Micronesia;
    (B) Any citizen of Palau having the privileges set forth in 
paragraph (d)(1) of this section who also possesses the nationality or 
citizenship of another country and who has not renounced that 
additional nationality or citizenship under oath within 2 years after 
the effective date of the Compact with Palau (October 1, 1994), or 
within 6 months after becoming 21 years old, whichever is later. This 
is pursuant to section 143(b) of the Compact with Palau; and
    (v) Citizens of the Compact countries who seek a residence status 
leading to naturalization. This is pursuant to section 141(c) of the 
Compacts.
* * * * *

    Dated: July 13, 2001.
Kevin D. Rooney,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-17957 Filed 7-17-01; 8:45 am]
BILLING CODE 4410-10-M